PJC Business 2024

T ORTIOUS I NTERFERENCE

PJC 106.3

PJC 106.3

Wrongful Interference with Prospective Contractual or Business Relations (Comment)

The elements of tortious interference with a prospective contract or business rela tionship are (1) a reasonable probability that the plaintiff would have entered into a business relationship with a third party, (2) the defendant either acted with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of the conduct, (3) the defendant’s conduct was independently tortious or unlawful, (4) the interference proximately caused the plaintiff injury, and (5) the plaintiff suffered actual damage or loss as a result. Coin mach Corp. v. Aspenwood Apartment Corp. , 417 S.W.3d 909, 923 (Tex. 2013). With respect to the first element, a contract or business relationship that is merely delayed cannot be the basis for a claim of tortious interference with prospective con tracts or business relationships. Texas Disposal Systems Landfill, Inc. v. Waste Man agement Holdings, Inc. , 219 S.W.3d 563, 590–91 (Tex. App.—Austin 2007, pet. denied). With respect to the second element, interference as contemplated by this cause (and by intentional interference with an existing contract) is intentional if committed with the desire to interfere with the contract or with the belief that interference is substan tially certain to result. Bradford v. Vento , 48 S.W.3d 749, 757 (Tex. 2001) (quoting Restatement (Second) of Torts §766B cmt. d (1979)). If the actor had no desire to effectuate the interference by his conduct but knew that interference would be a mere incidental result of conduct he was engaging in for another purpose, then the interfer ence may be found to be not improper. Bradford , 48 S.W.3d at 757. These elements, as well as proximate causation (see PJC 100.13) and damages (see PJC 115.22, 115.37, and 115.38), readily lend themselves to modification in a jury instruction. The third element, “independently tortious or unlawful” conduct, does not. For example, the supreme court held in Sturges that “independently tortious or unlawful” does “not mean that the plaintiff must be able to prove an independent tort.” Wal-Mart Stores, Inc. v. Sturges , 52 S.W.3d 711, 726 (Tex. 2001). Thus, “a plaintiff may recover for tortious interference from a defendant who makes fraudulent state ments about the plaintiff to a third person without proving that the third person was actually defrauded.” Sturges , 52 S.W.3d at 726 . However, courts have not decided how this holding translates into jury instructions or even predicate, gatekeeping decisions a trial court may make. Given the wide range of “independently tortious or unlawful” forms of conduct and the lack of published opinions addressing how this element should be charged to the jury, the Committee expresses no opinion on the proper sub mission of the “independently tortious or unlawful” element and, consequently, expresses no opinion on the proper submission of the claim as a whole.

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